This appeal under section 4(2) of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 (hereinafter called the Act) is directed against the order of the learned District Judge/Settlement Commissioner, Karachi dated 28-2-1966 by which he allowed the claim of respondent No, 1 that the disputed property was evacuee trust property and could not be disposed of by the Settlement Authorities.
2. Briefly stated the admitted facts of the case are that the property in dispute bearing Survey No, R.
S. 4/4 (old Survey No, E-6/279) situated on Barness Street, Opposite Hoti Market, Karachi was claimed by the Divisional Evacuee Trust Committee to be attached to an institution by name Dakshini Brahma Sabha, Karachi. It thus happened that the appellant sought the transfer of this property and for that purpose filed his C. H. Form before the Settlement authorities on 10-11-1959.
The Deputy Settlement Commissioner, who dealt with this application on the original side, rejected it on the ground that the property was a trust property. The appellant went in appeal against this order before the Additional Settlement Commissioner and this officer allowed the appeal; having come to the conclusion that the property was not trust property. Thereafter the appellant paid the price of the property and was issued the Provisional Transfer Order on 6-8-1962. Being aggrieved of this order, the Evacuee Trust Board sought the cancellation of the Provisional Transfer Order of the appellant and for that purpose filed an application before the Additional Custodian. The learned Additional Custodian rejected this application with directions that the matter may be taken to the civil Court for decision. The Evacuee Trust Board did not file any suit in the civil Court, but on the coming into force of Ordinance XIII of 1964, on 28-12-1964, they filed an application before the Chief Settlement Commissioner that the property in question was trust property attached to an institution and that its transfer to the appellant should be cancelled. This application was heard by the District Judge/Settlement Commissioner, exercising power as delegatee of the Chief Settlement Commissioner, and the same was allowed vide the impugned order.
3. Mr. Abdul Majeed Khan, the learned counsel for the appellants firstly contended that Ordinance XIII of 1964 was not retrospective and therefore the Settlement Commissioner could not reopen the question of his transfer after he was issued the P. T. 0. and P. T. D. respecting the disputed property.
In substance the contention of the learned counsel is that he had acquired vested rights in the property in dispute which could not be taken away by applying the provisions of Ordinance XIII of 1964 retroactively. The contention has no force. The learned counsel admitted before me that the property in question was transferred to him by the Settlement Authorities exercising power under section 16-A of the Act. This section no doubt empowers the Chief Settlement Commissioner to transfer Evacuee Trust Properties but his jurisdiction is subject to certain conditions as enumerated under section 16-A. The relevant condition applicable to this case would be condition (g) which envisages that in order to dispose of Evacuee Trust Property it should appear to the Chief Settlement Commissioner to be the best course under the circumstances. The requirement of this condition appears to be an objective satisfaction and the learned counsel for the appellants admitted before me that no enquiry of any nature was made by the Chief Settlement Commissioner nor is there anything on record to show that before disposing of the property in question to the appellants he was even conscious of the requirement of this condition. Not only this but according to section 16-A, the Chief Settlement Commissioner had to frame a scheme for the disposal of Evacuee Trust Properties and Mr. Ajmal Mian informs me that the said scheme was framed in April 1960. This scheme appears at page 469 of the Act (1969 edition) and according to para. 19(J) thereof the previous approval of the Central Government was to be obtained in case the Board was of the view that the evacuee trust property was uneconomical and should therefore be disposed of. Mr. Abdul Majeed Khan admitted that no sanction of the Central Government was obtained in this case nor was the matter referred to the Board. It would therefore follow that when the property was transferred to the appellants by the Additional Settlement Commissioner he did not acquire any right in the property; as the orders of transfer made in his favour being wholly void; having been passed in violation of the mandatory provisions of section 16-A of the Act and the scheme framed thereunder. If this be so then the appellants did not have any vested right in the property and consequently the contention of the learned counsel that Ordinance XIII of 1964 could not be applied retrospectively is misconceived.
4. Mr. Abdul Majeed Khan next contended that the Settlement authorities had the power to transfer the property in question to the appellants and once that power was exercised it was not open to question in these proceedings. I am afraid the contention proceeds in disregard of what has been said in the preceding para. namely that the very transfer order passed in favour of the appellant was void; having been passed in violation of the requirement of section 16-A of the Act and therefore the contention has no force.
5. Mr. Abdul Majeed Khan next contended that the property in this case was neither a trust property nor was it attached to a charitable or educational trust or institution as contemplated by section 4 of the Settlement Act, 1958 and therefore the same was properly transferred to the appellants. In this respect he pointed out that "Dakshini Brahama Sabha" was a society registered under the Societies Registration Act but was not an "institution" contemplated by section 4 of the Act of 1958. So far as the last objection is concerned it is fully answered in AIR 1954 All. 291 in which the word "Sabha" was considered and held to be an institution. If this be so then the contention of the learned counsel is clearly without force considering that he admitted, and quite rightly, that the objects of "Dakshini Brahama Sabha"were not only charitable but also of a public nature. In regard to his other contention that the property was not a trust property Mr. Ajmal Mian, the learned counsel for the Evacuee Trust Board pointed out that this objection was not raised before the District judge/Settlement Commissioner and therefore it cannot be raised in these proceedings. I have gone through the objections of the appellants before the Settlement Commissioner and they support the contention of Mr. Ajmal Mian. The question which is now sought to be raised is not a pure question of law and therefore the same cannot be permitted to be raised at this stage. Even otherwise there is sufficient documentary evidence on record to show that the property in question was used by "Dakshini Brahama Sabha" as trust property and nothing has been brought on record to contradict the said documentary evidence.
6. As against this Mr. Ajmal Mian, the learned counsel for the Evacuee Trust Board relied upon the following observations of the Supreme Court of Pakistan in the well known case of Devachand Muljimal which appear at page 360 of the judgment: "It would thus appear that under both these Acts the authorities were concerned with separately classifying only properties given in trust for a public purpose of a religious or charitable nature. The presumption, therefore, that should have been drawn from the fact of the properties being entered in the register of the Custodian as a trust property was that it was a trust of the kind mentioned in subsection (2) of section 7 of the Act of 1957 which should have been dealt with in accordance with the provisions of subsection (2) of section 4 of the Act of 1958 by the Settlement and Rehabilitation Authorities."
7. The learned counsel for the parties admitted that the record of the Settlement Authorities was constructed on the basis of the record of the Custodian. If this be so then the Settlement uthorities could not transfer the disputed property to the appellants as according to the Deputy Settlement Commissioner, who must be presumed to have consulted the record, the property was evacuee trust property. In fact the Additional Settlement Commissioner who had transferred the property to the appellants was not even competent to deal with it in any manner other than treating it as evacuee trust property in line with the above observations of the Supreme Court.
The learned counsel did not urge any other ground and since I find no force in this appeal it is dismissed with costs. PLD 1965 SC 356